Answering Olson: State Disinterest.

The anti-8 litigator, Ted Olson, wrote an article in Newsweek a short time before the trial in San Francisco began a couple of weeks ago. This is another blogpost in a series that provides my answer to Olson.

Olson wrote:

We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

The thing that jumps out immediately is that we do not inquire whether the individuals are heterosexual. So what does that say about Olson's rhetoric?

Also that last sentence is a crude attempt to invert the societal interest in responsible procreation into an interest in discouraging responsible procreation. Of course, he dropped the responsible part. More on that in the next installment.

Let's apply Olson's reasoning to the ineligiblity of related people and see how it might stand up. Keep in mind that Olson assumes in his article that society, via the state, is disinterested in marital procreation and that the purpose of marriage is to organize society by sexual orientation.

[Click here to read the rest of the blogpost.]

Some, but not all, related people.

We draw a line that disallows some related people and allows other related people to marry.

We do not inquire whether related people intend to engage in incestuous sexual behavior, or if they have the desire to do so, or even if they have the capability, before we disallow them to marry. It is not like we would say, oh sure go ahead, if we inquired and they promised that they would not touch each other at all.

Also, we certainly do allow some related people to marry and we don't inquire about their sexual intentions, desires, capabilities.

If we apply Olson's reasoning, then, incestous sexual behavior is irrelevant and it can only be pernicious to think marriage should be limited to unrelated people because of the state's desire to discourage sexual behavior of related people; or, for that matter, because of the state's desire to promote sexual behavior of unrelated people.

Olson's underlying assumption is that the purpose of marriage is to organize society by sexual orientation.

SSM as Proxy for Homosexual Orientation.

Olson's Newsweek article strongly implies that he promotes SSM as proxy for advancing a government interest in same-sex sexual behavior and gay identity. He never gets around to plainly stating what such an interest might be.

But where SSM is licensed, we don't inquire if the same-sex twosome intends to engage in same-sex sexual behavior, or if they were born homosexually orientated, or if they feel romantic toward each other, before allowing them to SSM. We permit people who were previously heterosexually active to SSM. We permit two heterosexual persons to SSM. We permit asexual people to SSM. We permit people who are openly anti-gay to SSM. It is pernicious to think that we allow people to SSM because of the state's desire to protect same-sex sexual behavior, attraction, or romance.

Likewise, we permit a mix of homosexual and heterosexual people to SSM. It is pernicious to think that we allow people to SSM because of the state's desire to prevent mixed orientation relationships.

There's more to say about the quoted paragraph and the reasoning offered by Ted Olson. Stay tuned.

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Return to "Answering Ted Olson: Updates."